Excerpt:.....judges were of opinion that, in the case of an order of remand by this court of which it could be said that it had determined the only really substantial question in issue between the parties, the precedent set by their lordships in muzhar hossein's case ought to be followed and leave to appeal granted. it is clearly distinguishable from either of the two cases above referred to in which leave to appeal was refused. in any case we are satisfied that we ought to follow the precedent set in muzhar hossein's case and grant the certificate asked for.grimwood mears, c.j. and piggott, j.1. this is an application' for leave to appeal to his majesty in council against an order of this court, dated the 4th of december, 1922. there are materials on the record quite sufficient to show that the value of the subject-matter in dispute between the parties in the proceedings resulting in this court's order above referred to exceeded rs. 10,000. this court did not affirm the decision of the court below. what is objected to is that the order in question is neither a decree nor a final order within the meaning of section 109(a) of the code of civil procedure. on behalf of the applicant it is contended that the order in question is, at any rate, a final order within the meaning of the clause above referred to. apart from this, it is contended that,.....

Judgment:

Grimwood Mears, C.J. and Piggott, J.

1. This is an application' for leave to appeal to His Majesty in Council against an order of this Court, dated the 4th of December, 1922. There are materials on the record quite sufficient to show that the value of the subject-matter in dispute between the parties in the proceedings resulting in this Court's order above referred to exceeded Rs. 10,000. This Court did not affirm the decision of the court below. What is objected to is that the order in question is neither a decree nor a final order within the meaning of Section 109(a) of the Code of Civil Procedure. On behalf of the applicant it is contended that the order in question is, at any rate, a final order within the meaning of the clause above referred to. Apart from this, it is contended that, under the circumstances, the case ought to be certified as a. fit one for appeal to His Majesty in Council, merely on the ground that it is an appeal from an order of this Court, and any difficulty as to whether the order in question was or was not a final order could be avoided by applying the provisions of Section 109(c) above referred to. It is necessary to examine the circumstances under which this matter came to the Court. It was an execution appeal arising out of a mortgage decree. The decree-holders were the appellants in this Court. They had obtained execution of their mortgage decree in a somewhat unusual, but perfectly lawful, manner. They had exhausted the whole of the property covered by the decree, and they alleged that1 a very considerable portion of the decree still remained unsatisfied. They applied to the court below for the preparation of a decree covering this unsatisfied balance, under the provisions of Order XXXIV, Rule 6, of the Code of Civil Procedure. The office report prepared at the time the application was made is on this record. It is to the effect that the amount due under the decree on the date of the said report, namely, the 23rd of May, 1918, was Rs. 32,119-7-6, and that the total amount; realized by sale of the mortgaged property was only Rs. 18,600. We do not' say that the parties are. necessarily bound by these figures. They may require further investigation in the court below. We refer 'to them, however, as showing that prima facie the amount of the subject-matter in dispute was considerably in excess of Rs. 10,000. The judgment-debtors objected that the application for a decree under Order XXXIV, Rule 6, was statute-barred under the appropriate article of the Indian Limitation Act. The execution court upheld this contention and dismissed the application of the decree-holders. On appeal, a Bench of this Court held that the application was within time. The order of the court below was, therefore, set aside and the execution court was ordered to re-admit the application of the decree-holders on to its file of pending applications and to dispose of it according to law. Under the circumstances this amounted to a direction that a decree under Order XXXIV, Rule 6, should be prepared, the details of which were left for the execution court to settle. It is against this order that the judgment-debtors now desire to appeal to His Majesty in Council.

2. We have been referred to two cases of this Court, namely, Baij Nath Dass v. Sohan Bibi (1909) I.L.R. 31 All. 545 and Ahmad Husain v. Gobind Krishna Narain (1911) I.L.R. 33 All. 391 in which leave to appeal to His Majesty in Council against an order passed by this Court under Order XLI Rule 23, of the Code of Civil Procedure was refused on the ground that the order sought to be appealed against in each case was neither a decree nor a final order. Authority on the other side is to be found in the case of Saiyid Muzhar Hossein v. Mussamat Bodha Bibi (1894) I.L.R. 17 All. 112. In that case leave to appeal was refused by this Court against an order passed under the section of the former Civil Procedure Code corresponding to Order XLI, Rule 23, of the present Code, but special leave to appeal was granted by his Majesty in Council. The learned Judges of this Court who decided the case of Baij Nath Dass v. Sohan Bibi (1909) I.L.R. 31 All. 545 distinguished Muzhar Hossein's case from the one then before them, on the ground that the order passed by this Court in Muzhar Hossein's case decided a point which went to the very root of the case, all the other defences raised being of a subordinate character; Clearly the learned Judges were of opinion that, in the case of an order of remand by this Court of which it could be said that it had determined the only really substantial question in issue between the parties, the precedent set by their Lordships in Muzhar Hossein's case ought to be followed and leave to appeal granted. The present seems to us such a case; it is clearly distinguishable from either of the two cases above referred to in which leave to appeal was refused. It is only necessary to glance at the reports in those two cases to see that the facts were materially different. In the case now before us this Court disposed of one substantial objection raised by the judgment-, debtors to the decree-holder's application. The case was sent back to the execution court because the steps which remained to be taken, in order that a proper decree under Order XXXIV, Rule 6, might be prepared, could more conveniently be taken in that court. We are by no means certain that under these circumstances the order of this Court might not fairly be described as a final order within the meaning of that expression as used in Section 109 of the Code of Civil Procedure. In any case we are satisfied that we ought to follow the precedent set in Muzhar Hossein's case and grant the certificate asked for. We order accordingly.